PRIVILEGED COMMUNICATIONS
This relates to facts which are relevant but the proof of which is neither
allowed nor admissible in any legal proceeding. Hence, privilege entitles a
witness to withhold relevant evidence from a Court or forbid another from
giving such evidence. In other words, privilege is an exception to the rule
that all relevant facts are admissible, and it applies to both oral and
documentary evidence. The rationale is to protect confidential
relationships, or the advancement of public policy.
A witness may claim privilege for himself, in which case, he is not
compellable to tender any privileged information in evidence. A witness
may also claim privilege on behalf of another person (such as where he is
testifying for a privileged party), in which case, he cannot be compelled to
give evidence of a privileged information unless that other party waives
the privilege. In addition, a Court may suo motu direct that a witness need
not answer any question relating to a privileged information.
Generally, privilege may be categorized into two types namely; State
privilege, and private privilege. State privilege encompasses the privilege
afforded persons who occupy public offices, or work in the public service
of the country or a State, in any capacity in respect of the government of
the country or State. Private privilege on the other hand refers to that
afforded private individuals. There exist some notable differences
between both categories of privilege. For instance, while private privilege
may be waived by the privileged individual, State privilege may not be
waived on the ground public policy. Also, where a party obtains a
privileged information independently, it is admissible in case of private
privilege but inadmissible in case of State privilege.
STATE PRIVILEGE
i. JUDICIAL OFFICERS: Section 188, EA. The privilege afforded by this
section include facts relating to the conduct of a judicial officer while
presiding over a case, or anything that came to the knowledge of a
judicial officer while acting in that capacity; for instance, facts that a
judicial officer became aware of through evidence tendered in a case
over which he presides. The privilege does not however extend to any
other matter which may occur in the presence of a judicial officer
while so acting; for instance, confrontations between parties or
witnesses, or any other incidents that may occur in the open Court.
ii. INFORMATION AS TO COMMISSION OF OFFENCE: Section 189, EA. The
specified officers are protected from being compelled to disclose the
source of their information relating to the commission of any offence
that is being tried.
iii. AFFAIRS OF STATE: Section 190 & 191, 243(1) EA, 36(4) CFRN. Since
section 36 CFRN guarantees fair hearing as a matter of fundamental
human right, the Court in each case has the power, in the interest of
proper administration of justice, to look at the evidence and weigh it
on the scale of the injury occasioned to a party by its non-disclosure
against the injury occasioned to public interest by its disclosure, MAJA
(JNR) & SONS LTD. v. UNITED AFRICAN CO. OF NIG. LTD. [1971] 1NMLR
157; ATTORNEY GENERAL OF THE WESTERN NIG. v. THE AFRICAN
PRESS & ANOR [1965] NSCC 10.
iv. DIPLOMATIC IMMUNITY: Section 1, Diplomatic Immunities and
Privileges Act 1962. By this privilege, the following persons are
immune from suit and legal processes;
Foreign envoy and consular officers
Members of their families
Members of their official or domestic staff
Members of the families of their official staff.
PRIVATE PRIVILEGE
i. COMMUNICATION DURING MARRIAGE: Section 187, EA. This provision
excludes a spouse from being compellable witnesses where any of
them is a party to a case with regard to communication made during
the subsistence of their marriage without the consent of the spouse.
This is because any communication exchanged during the subsistence
of a marriage is deemed a privileged communication. Note that the
other spouse may waive the privilege afforded such communication
by consenting to the disclosure of such communication. The privilege
afforded subsists even after the dissolution of the marriage. The
privilege afforded by this provision does not apply to the following
instances;
Where the proceeding in which a privileged communication is
sought to be disclosed is between the husband and wife
Where the proceeding against a spouse relates to prosecution for a
sexual-related offence as listed in section 182(1) EA
Where the spouse is standing trial for an offence against the
property of the other spouse
Where the proceeding relates to offences dealing with a spouse
inflicting violence on the other spouse. See generally section 182,
EA.
NOTE that the privilege is afforded spouses deemed married in the face of
the law. Hence, the privilege does not extend to couples cohabiting.
ii. PROFESSIONAL COMMUNICATION BETWEEN LEGAL PRACTITIONERS
AND CLIENTS: Section 192-195, EA. The privilege afforded here
attaches to communication between a lawyer and his client which is
made in confidence or intended to be confidential. This is because the
essence of this professional privilege is to enable clients to be open
with, and feel safe when making disclosures to their lawyers, HORN v.
RICKARD [1963] 2 ALL NLR 40. Second, the communication between a
lawyer and a client is deemed a professional communication and
privileged where it was made to the lawyer while acting in his
professional capacity and for the purpose of obtaining legal advice.
Such privilege subsists after the employment of the lawyer has
ceased, Section 192(3) EA, and applies to interpreters and clerks of
the legal practitioner, Section 193 EA.
The privilege afforded does not prevent the disclosure of any such
communication made in furtherance of any illegal purpose, or the
disclosure of any fact observed by a legal practitioner in the course of
his employment showing that a crime or fraud has been committed,
Section 192(1). It does not matter whether the client himself directed
the attention of the lawyer to such fact, Section 192(2).
NOTE that being a private privilege, it may be waived. However, the
privilege is that of a client and not a legal practitioner, HORN v.
RICKARD [1963] 2 ALL NLR 40. Therefore, only the client may waive it.
A client is not deemed to have waived it by giving evidence in his
case, but where a client calls his counsel as a witness and questions
him on such privileged matters, he is deemed to have waived it,
Section 194 EA.
Just as a legal practitioner, a client may not be compelled to disclose
any confidential communication between him and his legal
practitioner unless where he offers himself as a witness in which case,
he may be compelled to disclose only such communication as may
appear to the Court necessary to be known in order to explain any
evidence he has given, Section 195 EA.
iii. STATEMENTS MADE WITHOUT PREJUDICE: Section 26 & 196 EA. This
privilege is afforded to promote amicable means of settlement of
disputes between aggrieved parties without the interference of the
Court through any agreed alternative dispute resolution mechanism.
The application of the privilege is therefore not dependent on the use
of the phrase ‘without prejudice’, but only applicable where it is clear
from the circumstances of the case that the intention of disputing
parties is to settle either existing or threatened litigation, OMISADE v.
MUSA MARTINS & ANOR. Thus, heading a contract ‘without prejudice’
has been held not to make the contractual document privileged,
SOCIETE COMMERCIALE DE L’QUEST AFRICANS v. MICHAEL AYODELE
OLUSOGA & ANOR [1936] 13 NLR 104.
Note that this privilege is not confined to written statements alone but
extends to oral negotiations between disputing parties provided the
meetings and negotiations were understood by the parties to have
been held without prejudice.
This privilege extends only to the disputing parties and not to third
parties, NWADIKE & ORS v. IBEKWE & ORS [1987] 2 NSCC 1219.
Likewise, it does not extend to other disputes between the same
parties apart from the one for which the settlement was sought.
Being a private privilege, both parties may agree to waive the
privilege in which case, facts disclosed during pre-trial settlement may
be given in evidence during trial, McTAGGART v. McTAGGART [1949] P
94; MOLE v. MOLE [1951] P 21.
iv. PRIVILEGE AGAINST SELF-INCRIMINATION: Section 183 EA. This
privilege is applicable where answering any question would expose a
witness or the spouse to a criminal charge. Exceptions to this privilege
include;
A person charged and being a defence witness may be asked any
question by the prosecution in cross examination notwithstanding
that it would tend to incriminate him as to the offence charged
Where answering any question would tend to only expose a witness
to some kind of civil liability or establish that he owes a debt
A witness is not excused from answering any question at any
inquiry directed by the Attorney General of a State or the
Federation pursuant to the commission of an offence against the
law of a State or Federal law, notwithstanding that the answer
would incriminate him, see generally Sections 453, 458 & 458A,
Criminal Procedure Act, Cap C41 LFN 2004.
v. PRIVILEGE ATTACHING TO CERTAIN DOCUMENTS: Section 184 & 185
EA. A witness who is not a party to a suit may not be compelled to
produce his title deeds or any other document creating a charge to
any property the production of which could incriminate the witness,
Section 184. section 185 broadens the privilege to include situations
in which the document in the possession of a witness belongs to some
other person entitled to refuse its production pursuant to section 184.
